State lawmakers and representatives from health insurance marketplace navigator organizations are questioning both the timing of an effort by Texas regulators to craft rules regarding navigators and the need for rules that go beyond those already in place on the federal level.
In a September 30 hearing, stakeholders told Texas Department of Insurance staff it is premature for the agency to be contemplating rulemaking for Senate Bill 1795, which was passed by the Texas legislature this year and outlines the process for regulating navigators for the health insurance exchange set up under federal Affordable Care Act. Speaker after speaker criticized the timing of TDI’s hearing, which took place the day before open enrollment in the health insurance marketplace was set to begin.
Opening what she said was an informal proceeding to gather information, Jamie Walker, TDI’s associate commissioner for licensing services, said in scheduling the meeting the agency is responding to “concerns from state leadership and legislators about the federal requirements for navigators, especially in regard to privacy and the protection of consumer information.”
Walker added that TDI has “identified potential consumer protection, education and privacy issues and has voiced this to the U.S. Department of Health and Human Services.”
That was news to lawmakers who authored and supported the bill, as well as stakeholders who provided input in crafting it.
The bill’s author, state Sen. Kirk Watson of Austin, said he “found out this morning for the first time that there has been in fact been a letter written by TDI to the secretary of Health And Human Services of the federal government, Kathleen Sebelius. I just heard in your opening comments that based on letters you have received from leadership you have may have made a determination or at least have some questions. … To date I have not received a response to my letter and I have not seen a copy of that letter that was sent to Kathleen Sebelius.”
Watson criticized the timing of TDI’s informal hearing, noting that because it was taking place the day before open enrollment was to begin in the health insurance marketplace “the people most directly impacted by SB 1795, navigators … will be less likely to be able to participate in today’s informal process. The very experts that we should be relying on for public input, those on the front lines of implementing a critical aspect of what is already federal law, had to make the decision to either participate in today’s meeting or forego this discussion to continue preparation for helping Texans who qualify for an exchange with an insurance plan that meets their family’s needs.”
Watson warned against turning the rulemaking process under SB 1795 into “political football” and questioned why TDI’s scheduling of the hearing came just one day after the Texas Insurance Commissioner Julia Rathgeber received a letter from Gov. Rick Perry “directing TDI to use its authority under SB 1795 and create rules.”
Watson reiterated, as he did in his own letter to Rathegeber in response to the governor’s correspondence, that his bill states that “if the commissioner makes a determination that the standards are not sufficient, ‘the commissioner shall make a good faith effort to work in cooperation with the United States Department of Health and Human Services and to propose improvements to those standards.’”
He said that to his “knowledge there has not been any determination made by the commissioner of insurance that there is a need for rule making,” only a letter from the governor directing her to do so.
State Rep. Chris Turner, who represents part of Tarrant County and is a member of the House Committee on Insurance, said that in “insurance committee hearings it was made clear that the intent of Senate Bill 1795 was to see that uninsured Texans received helpful and accurate information from navigators on how to access affordable health insurance in the marketplace.”
It was also clear, Turner said, that “the intent of the bill was clearly not to create arbitrary barriers between navigators and uninsured Texans. Nor was it to impede the program by adding extraneous regulation.”
TDI has the responsibility, Turner said, “to make rules that conform to the criteria laid out in the legislation only after a good faith effort is made with the U.S. Department of Health and Human Services to propose improvements to the federal standards.” He said he was unaware that good faith efforts had been made and that neither members of the House insurance committee nor the full legislative body had been informed as such.
“And I’m stunned that the author of the bill, Sen. Watson, wasn’t made aware of that,” Turner said.
Turner questioned the need for a rulemaking process given that the organizations that have been awarded navigator grants have a long history of community service.
“Let’s look at who the navigators are,” Turner said. “In my area it’s the United Way of Tarrant County, which is overseeing the navigator program in much of the state. It would be hard to think of a more well-respected nonprofit organization with a stellar track record of service in our communities than United Way. So let’s not embark on a needless rulemaking process which assumes the worst about those that the state would regulate when in reality these are servant organizations that make our state stronger.”
Tim McKinney, president and CEO of the United Way of Tarrant County, said his was the “lead organization of a 16-member consortium known as the Consumer Health Insurance Marketplace Enrollment Services.” Texas has 254 counties and consortium members operate in 220 of them, he said.
All consortium members have a lead navigator in charge of assigning navigator training and keeping records of certifications, he said. “All navigators will need to register and complete all 20 hours of required HHS online training and exams.” McKinney said, adding that the 20 training hours turn “out to be more like 30 to 40 hours, as I understand it.”
Consortium members perform “background checks on all navigators and require them to complete additional HIPPA [Health Insurance Portability and Accountability Act] training and receive certification. These additional training requirements were decided early on by the consortium due to our experience with client confidentiality with Medicaid, Medicare and CHIP [Children’s Health Insurance Program] enrollments.”
Stacy Pogue, a senior analyst at the Center for Public Policy Priorities, said she was “also surprised to hear that findings have gone to the federal government on standards for navigators. I think it is important that … everybody understands what concerns TDI has and what was reviewed in making that determination.”
Pogue said her organization participated in the process of crafting SB 1795. “All of the stakeholders that worked on the bill worked collaboratively,” Pogue said. They agreed that the bill should not foster duplication of federal standards or create unnecessary red tape. Instead, its purpose is to “empower the department in case problems arise.”
Pogue said if the department intends to go forward with a rulemaking process it is necessary for the agency to hear from navigator groups and advocates about their operational methods. Because the Sept. 30 hearing was the first of its kind to gather information on navigators’ procedures, “it’s difficult to see how that letter [to HHS] wasn’t premature, [as it was sent] before you actually talked to navigators,” Pogue said.
“The navigator program is a grant based program,” Pogue said. “It’s a very different structure than much of what TDI does through a regulatory model. Many of the standards requirements as some navigators have testified about today are actually contained in those grant contracts.”
When it comes to rulemaking, SB 1795, “doesn’t just require a finding, it requires a good faith effort, this is in quotes, to work in cooperation. It’s not supposed to be the state versus feds. It’s an opportunity to work collaboratively in good faith to correct any standards that aren’t good enough,” she said.
It also requires “a reasonable interval during which the federal government can try to make those improvements,” Pogue said. “There’s a lot of process that hasn’t happened at this point.”
Representing the Independent Insurance Agents of Texas, Misty Baker, IIAT’s director of health insurance services, said the association “worked very closely with Senator Watson’s office and the stakeholders on Senate Bill 1795.”
Many of IIAT’s members are “certified to sell health insurance inside and outside of the marketplace for both Texans that will and will not receive subsidies,” Baker said.
Still, IIAT supports “the use of navigators to guide Texans in completing the applications in the marketplace, explain how health insurance works and what premiums and cost sharing subsidies may be available in a way that’s culturally appropriate,” she said.